umass open meeting law investigation, letter from ag’s office

8/6/2019 UMass Open Meeting Law Investigation, Letter from AGs Office

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THE COMMONWEALTH OF MASSACHUSETTS

OFFICE OF THE ATTORNEY GENERALONE ASHBURTON PLACE

BOSTON, MASSACHUSETTS 02108

(617) 727-2200(617) 727-4765 TTY

www.mass.gov/ago

MA RTHA C OAKLEY

ATTORNEY GENERAL

August 4, 2011

OM L 2011-34

Deirdre H eatwole, Esq.G eneral CounselUniversity of M assachusetts333 South Street

4 t h FloorShrewsbury, MA 01545

R E: Open M eeting Law Investigation

Dear M s. H eatwole:

T he A ttorney G eneral's O ffice initiated an investigation of the University ofM assachusetts Board of Trustees (the "Board") based on a reasona ble cause to believe that theBoard had violated the O pen M eeting L aw, G . L. c. 30A , 18-25, in connection with the

appointment of the University's new president. W e notified you of this investigation by letter,dated M arch 14, 2011.

W e find that the Board violated the Open M eeting Law throughou t the presidential searchprocess. The violations were wide-ranging and serious. They demonstrate a pressing need foradditional education and training with respect to the duties and o bligations impo sed by the law .Indeed, the need for training is acute given that the Board has anno unced that it will begin theprocess of appointing a new University of M assachusetts A mherst C hancellor in September. Webelieve that this new process prov ides a timely and unique o pportunity to educate the Board onthe core principles of the O pen M eeting Law. T herefore, among other requirements and asdiscussed more fully below, we order the Board to undergo O pen M eeting Law training before it

begins the process of appointing a new chancellor. The individual conducting the training m ustbe satisfactory to the Division of O pen G overnmen t ("Division"), and the Board mu st certify thatevery Board m ember has attended the training. In addition, the Board m ustsubmit a copy to theDivision of all required meeting n otices, as well as all meeting minu tes created during thechancellor appointment process.

W e understand that, generally,the Board acted on advice of counsel. See G.L. c. 30A,


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23(g) ("[i]t shall be a defense to the imposition of a penalty that the public body, after fulldisclosure, acted in goo d faith compliance w ith the advice of the public counsel's legalcounsel)." H owever, we believe that this advice was a contributing factor to the violations.

O ur investigation and review o f the presidential appointment process provides a uniqueopportunity to achieve compliance with the law in the U niversity's impending chancellorappointment process. M oreover, we are hopeful that the ordered training and scrutiny w ill havea lasting influence on the way that the Board and its subcommittees conduct business.' Webelieve, given the totality of the circumstances, this remedy is appropriate.

In making ou r determination, we reviewed the notice and the open and executive sessionminutes of the Board's January 13, 2011 meeting. We also reviewed the notices and minutes ofopen m eetings held by the Board's President's Search C omm ittee (the "Search Com mittee") onMay 3, 2010, June 14, 2010, September 17, 2010, and January 13, 2011 open meetings. Wereviewed the executive session minutes of the Search Committee's October 7, 2010, October 8,2010, October 21, 2010, October 22, 2010, November 3, 2010, December 16, 2010 and January13, 2011 meetings. We also reviewed letters from you , dated A pril 6 and A pril 25, 2011, sent inresponse to our requests for documents. Finally, we interviewed Board and S earch C omm itteeC hairman James K aram on M ay 3, 2011 and T rustee and Search C ommittee Vice-Chairman

H enry T homas on M ay 31, 2011.

FACTS

University of M assachusetts President Jack Wilson announced on M arch 1, 2010 that hewould retire at the end of the 2010/2011 academic year. O n M arch 25, 2010, the Boardestablished the President's Search C omm ittee to review can didates and identify finalists forconsideration by the Board. T he C hairman of the Board at the time, Robert M anning, appointedthen-Trustee James Karam as chair of the Search Committee. The Search Committee consistedof 21 m embers an d included trustees, University faculty, students and former trustees.

M ay 3, 2010 Search C ommittee M eeting

T he Search C omm ittee met for the first time on M ay 3, 2010 at the University ofMassachusetts Club ("UMass Club") in Boston. At the outset of the meeting, Committeemem bers were provided with a mem orandum from counsel detailing their obligations und er theversion of the O pen M eeting Law in effect at the time.Se e G .L. c. 30A , 11A 1/2 (repealed).

A ccording to the minutes, the Search Com mittee discussed retaining a search firm to helpidentify qualified candidates. Trustee M aria Furman agreed to lead a group of Co mm itteemem bers to review the search firm proposals. M embers Philip Johnston, Robert Sheridan,W inston L angley and M arcellette Williams volunteered to be a part of that group. A ccording to

our interview with Search Committee Vice-Chair Henry Thomas, that sub-group interviewedsearch firms and ultimately chose Greenw ood/A sher to assist in the search. T here are no recordsof the sub-group's meetings, meeting notices were not posted and minutes were not kept.

We note that the presidential search process spanned a period when two versions of the Open Meeting Law werein effect. It is possible that the transition to the requirements of the revised O pen M eeting Law , which becameeffective on July 1, 2010, added to the B oard's apparent confusion.

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The Search Committee also discussed involving the University community in the searchprocess through events at each of the five University campuses.

June 14, 2010 Search Com mittee M eeting

The Search Committee next met in open session on June 14, 2010 at the UM ass Club.The Search Committee met with Greenwood/Asher representatives, who proposed a timeline andsuggested a process for the search. The meeting minutes contain no details about the discussion.

Search Committee September 2010 Forums

The Search Committee held a series of forums on the presidential search process at eachof the different University campuses between September 13, 2010 and September 16, 2010. Atleast one member of the Search Committee participated in each forum, although it does notappear that a quorum of the Search Committee members participated in any forum.

September 17, 2010 Search Committee M eeting

The Search C ommittee met again on September 17, 2010 at the UM ass Club. T his wasthe first time either the Search Committee or the Board had met after the July 1, 2010 effectivedate of the revised Open M eeting Law.Se e G .L. c. 30A , 18-25. Notice for the meeting wasposted on September 2, 2010. The notice did not include a listing of topics for the SearchCommittee's consideration, as required by the new version of the law.

According to the open meeting minutes, members updated the Search Committee on theSeptember campus forums. Chair James Karam then called a roll-call vote to enter executivesession, stating that "I have determined that our conducting initial screening of applicants in anopen meeting will have a detrimental effect on obtaining qualified applicants for this position. Inaddition, by going into executive session we will be able to protect the privacy or other rights ofapplicants." The Search Committee then apparently entered executive session. However, the

Search Committee did not provide our office with minutes of that executive session. Therefore,we have no record of what actually occurred there.

October 7, October 8, October 21, October 22, andN ovember 3, 2010 Search C ommittee Meetings

The Search Committee met on five separate occasions in October and November at theHilton Boston Financial District to interview candidates identified by Greenwood/Asher. Eachtime, the Search Committee convened in executive session. According to Trustee Thomas, theCommittee interviewed approximately 15 candidates during these sessions. No notice wasposted for any of them. According to Chair Karam and Trustee Thomas, the Search Committee

"continued" the executive session convened on September 17, 2010 from one meeting to anotheruntil the executive session purpose had concluded. The executive session minutes confirm thatpractice, stating that each meeting was a "Continuation from 9/17/10." According to ChairKaram, the Search Committee did not want to post executive session meeting notices because itdid not want anyone waiting in the lobby to publicly identify candidates whose names weresupposed to be confidential throughout the preliminary search process.

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In the first session on October 7, 2010, the Search Committee met from 5:30 p.m. to 8:00p.m. without convening first in open session and without taking a roll-call vote to enter executivesession. The minutes state only that "Chairman K aram welcomed the committee...and reiteratedthe need for confidentiality. The Search firm reviewed the interview process and questions wereconfirmed. One candidate was interviewed by the Committee."

The Search C ommittee's meetings on O ctober 8, O ctober 21, O ctober 22, and N ovember3, 2010 followed the same pattern. No notice was posted for the meetings. Each time, theexecutive session minutes state that the meeting was a "Continuation from 9/17/10." Theminutes state, in substance, only that "Chairman Karam welcomed the committee...andreiterated the need for confidentiality. The Search firm reviewed the interview process andquestions were confirmed. [Some number of] candidates were interviewed by the Committee."Although the sessions all lasted for several hours, the minutes contain no summary of theinterviews, and no summary of Committee members' comments.

The minutes of the November 3, 2010 meeting also state that SearchCommitteememberJohn DiBiaggo "will call into the meeting."

December 16, 2010 Search Committee Meeting

The Search Committee next met on December 16, 2010, in executive session, at theUM ass C lub. No notice was posted for this meeting. Once again, the executive session minutesstate only that the meeting was a "Continuation from 9/17/10." And the minutes are again briefand general, stating only that: "Chairman Karam welcomed the committee...and reiterated theneed for confidentiality. Chairman Karam asked the search firm to update the committee on newprospects and some referring prospects. The Committee expressed concerns with the lapse intime and asked to see some new candidates and to see some candidates again so they couldrefresh recollections. The committee reviewed additional prospects with [the] search firm andasked for additional work on recruiting candidates." According to our interview with Trustee

Henry Thomas, however, the Search Committee also used the executive session to narrow the listof fourteen presidential candidates to five potential finalists. There is no discussion of thatprocess in the executive session minutes.

January 13, 2011 Search Committee M eetings

The Search Committee met for the final time on January 13, 2011, in executive session,from 8:00 a.m. to 12:55 p.m. at the Hilton Boston Financial District. No notice was posted forthis meeting. Again, the executive session minutes state that the meeting was a "Continuation ofExecutive Session from 9/17/10." By the time of this last meeting, two of the five candidatesremaining under consideration by the Search Committee had withdrawn. The Search Committee

met with the remaining three candidates separately, interviewing each one for approximatelyforty minutes. The Search Committee discussed whether to forward these three candidates to thefull Board as finalists, or to continue the search. Although the minutes do not reflect a vote, theystate that the Search Committee decided to announce the three candidates as finalists.2 The

2 Our concern here is not with the accuracy of the minutes. Rather, the concern is that the Search Committeeappears to have m ade a final decision in executive session without taking a vote, acting on some sense of consensus.

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Search C omm ittee adjourned the executive session at 12:55 p.m. A ccording to the minutes, andconfirmed by our interviews with Trustees Karam and Thomas, three members of the SearchC omm ittee participated in the meeting by telephone.

The Search Com mittee then convened in open session at 1:25 p.m. at the UM ass C lub.T he notice for this meeting was timely posted on January 5, 2011. H owever, the notice did notinclude a list of topics to be discussed at the meeting. A ccording to the meeting m inutes, C hairK aram reported that the Search C omm ittee had chosen finalists for the position of president ofUM ass. The Search C omm ittee introduced the fmalists as Dr. C harles Bantz, Dr. Robert C aretand Dr. Philip Clay. T he Search C omm ittee then voted to recommend the three fmalists to thefull Board of Trustees and to conclude their mission. Chair Karam adjourned the meeting at 2:03p.m. and announ ced that the work of the search committee was completed.

In interviews with this office, both Chair Karam and Vice-Chair Thomas explained thatthey did not know w hether the Search C omm ittee wou ld decide to forward the three candidatesto the Board as finalists prior to the Committee's fmal executive session on January 13, 2011. Itwas possible that the Search C omm ittee wou ld decide to continue interviewing candidates, oreven decide to start the process from scratch. T hey did know , however, that the Board wouldmeet later that same day and that the Search C omm ittee would be m aking a report to the Boardon the search process.

January 13, 2011 Board of T rustees M eeting

A . The Boston GlobeReports that the Board Will Enter Executive Sessionto Interview F inalists

O n January 13, 2011,The Boston Globereported that the Board w ould "convene at theUM ass president's office in down town B oston in the afternoon to interview the candidates inexecutive session, then discuss the finalist field publicly." Tracy Jan,Front-Runners Emerge forUMass P resident,TH E B O STO N G LO BE, January 13, 2011. T he article went on to note that "[O le

trustees could appoint a president as early as today." Id. Chair Karam was quoted in that articlestating that, "We're obviously optimistic that the plans will go ahead as originally planned...I amhoping that as a result of 10 mon ths' worth of a very detailed, open, and com prehensive processthat the board will find one o f the three people we are forwarding to the board as capable ofleading UM ass, and choose the one w ho best fits the institution's needs going forward." Id.

A ssistant A ttorney Gen eral Britte M cBride, then the Director of the A ttorney Gen eral'sDivision of Open Government, called you that afternoon, sometime between 12:30 p.m. and 1:00p.m. During this brief call, A ssistant A ttorney G eneral M cBride conveyed her concern that theBoard wo uld enter executive session to interview finalists in violation of the O pen M eeting Law ,as reported by theGlobe. Y ou assured her that the Board w ould only enter executive session for

proper purposes. Assistant Attorney General McBride also conveyed her belief that the Board'smeeting notice for the January 13, 2011 m eeting was insufficient because it lacked a listing ofthe specific topics that theGlobe article suggested the Board an ticipated discussing. Y ou statedthat you had not seen the m eeting notice.

See G .L. c. 30A , 22(b) ("Any vote taken in executive session shall be recorded by roll call and entered into theminutes.").

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B. Board of T rustees O pen Session from 2:38 p.m. to 3:17 p.m.

After the Search Committee adjourned for the final time, the full Board of Trusteesconvened a meeting at the UMass Club at 2:38 p.m. The notice for this meeting was posted onJanuary 5, 2011, and included two topics: I. Call to Order; II. Report of the President's SearchCommittee. The Board met in open session, with James Karam as acting Board Chairman.Trustee Henry Thomas recapped the presidential search process and then publicly introduced thethree finalists, with three different trustees reading aloud the candidates' biographies. A ccordingto the minutes, Chair Karam then announced the Board would enter executive session "to discussthe reputation and character of individual candidates and to conduct a strategy session inpreparation for negotiations with non-union personnel, and to comply with general or speciallaws." The Board voted by roll-call, and entered executive session at 3:17 p.m.

C. Board of Trustees Executive Session from 3:17 p.m. to 6:20 p.m.

A t the beginning of the executive session, Chair K aram asked you as G eneral Counsel toadvise the Board on the scope of topics permitted in Executive Session. It was noted in theexecutive session minutes that all three candidates indicated that they would not agree to beinterviewed in open session.3 According to the minutes, you advised the Board that they couldnot interview candidates in executive session and that they could not discuss the professionalcompetence of the candidates. You advised the Board that they could discuss the finalists'reputation and character in executive session, but the finalists' qualifications had to be reservedfor open session. Chair Karam told the Board that he would hate to see the Board divided on thevote in public session. You then told the Board that the penalty for violating the O pen M eetingLaw could be fines or nullification of the search process.

Following the discussion of the requirements of the Open Meeting Law, Jan Greenwoodfrom Greenwood/Asher provided the Board with information from reference and backgroundchecks on the finalists. Ms. Greenwood then reported her firm's fmdings on the reputation and

background information they had gathered on each candidate. M s. Greenwood also summarizedhow each candidate described his personal view of his greatest achievement and what heconsidered his greatest challenge. According to the minutes, the Board members then discussed"personal and confidential issues about the candidates." The Board members discussed positiveand negative qualities of the candidates, as well as the political experience of the candidates.

Following this discussion among Board members, Chair Karam introduced a questionthat would be read to each candidate who would be brought in front of the Board one at a time.The question was as follows:

As you know, we are in the final stage of selecting a new leader for our

University, and given that you are one of the finalist candidates, we would like tolearn more about you as a person. C learly, personal characteristics help to definea leader and come into focus when one assumes a position of leadership. Could

3 We note that the candidates should have expected to be interviewed in public for this important public position.See Gerstein v. Superintendent Search Screening Comm., 405 M ass. 465, 474 (1989), quoting Attorney G eneral v.School Comm. of N orthampton, 375 M ass. 127, 130 (1978).

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you tell us ab out character traits and personal characteristics that you think w ouldbe relevant as we prepare to make our important decision? W e're not asking youto describe your professional accomplishments, which are clearly excellent, butwou ld like to learn about what character and values you wou ld bring to UM ass.

E ach finalist was then brought into the executive session, one at a time, and asked C hairK aram's question. Each candidate provided an answ er, mostly speaking about their leadershipstyles and values. A ccording to the minutes, at least one candidate was asked a follow-upquestion.

After the Board met with each candidate, Chair Karam suggested that the Trustees sharetheir comments and their impression of the candidates' character and reputations. A number ofmem bers expressed their view that Dr. Caret had the personality necessary to move theUniversity forward. Trustee T homas expressed his view that Dr. C lay had the character neededand a reputation for an excellent school. There was n o vote by the Board on any cand idate.Both Chair Karam and Trustee Thomas acknowledged in interviews with our office that theycould tell the consensus of the room was behind D r. Caret. T he Board concluded its discussionand ended the Executive Session at 6:20 p.m. According to the minutes, four Board membershad participated in the executive session rem otely by telephone.

D. Board of T rustees O pen Session from 6:24 p.m. to 6:49 p.m.

The Board reconvened in open session at 6:24 p.m. The minutes state that Chair Karam"asked for the Board's thoughts and comments about the candidates." Immediately upon thatrequest, Trustee Philip Johnston motioned to appoint R obert Caret as President of UM ass. Themotion was seconded and two other Trustees offered remarks supporting Dr. Caret. The minutesstate that C hair K aram addressed the Board stating that the "consensus o f the Board is to selectRobert L. Caret as the University's next President." It was then voted unanimously to "appointR obert L. C aret as President of the University of M assachusetts." T he Board next voted to"authorize the Chairman to enter into negotiations with R obert L . Ca ret to agree to terms and

conditions of the A ppointment to the Position of President of the University of M assachusettsnotwithstanding the provision of any T rustee Policy." T he Board then invited Dr. C aret to makesome remarks. The Board adjourned at 6:49 p.m.

R E L E VA N T S E C T IO N S O F T H E O PE N M E E T IN G L AW

T he O pen M eeting L aw w as enacted "to eliminate much of the secrecy surroundingdeliberations and decisions on which public policy is based." Ghiglione v. School Committee ofSouthbridge, 376 M ass. 70, 72 (1978). T he law requires that meetings of a public body beproperly noticed and open to m embers of the public, unless an executive session is convened.See G .L. c. 30A , 20(a) (b), 21. A "public body" is any "multiple-member board,

comm ission, committee or subcom mittee within the executive or legislative branch or w ithin anycounty, district, city, region or tow n, how ever created, elected, appointed or otherwiseconstituted, established to serve a public purpose." G.L. c. 30A, 18. A "subcommittee"includes "any mu ltiple-memb er body created to advise or make recomm endations to a publicbody." Id.

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N otice of every meeting must be posted "at least 48 hours prior to such meeting,excluding Saturdays, Sun days and legal holidays," and every notice shall include "the date, timeand place of such meeting and a listing of topics that the chair reasonably anticipates will bediscussed at the meeting." G.L. c. 30A, 20(b). For meetings of a state public body, "noticeshall be filed with the attorney general by posting on a website in accordance w ith proceduresestablished for this purpose and a duplicate copy of the n otice shall be filed with the regulationsdivision of the state secretary's office." G.L. c. 30A, 20(c).

A public body may enter executive session for one of ten enum erated purposes, providedthat it has first convened in an open session, that a majority of mem bers of the body have votedto go into executive session and the vote of each mem ber is recorded by roll call and entered intothe minutes. G .L. c. 30A , 21(a)(b). Before entering the executive session, the chair muststate the purpose for the exe cutive session, stating all subjects that may b e revealed w ithoutcomprom ising the purpose for which the executive session was called, and the chair mustpublicly announce whether the open session w ill reconvene at the conclusion of the executivesession. Id.

Among the ten enumerated purposes for executive session is Purpose 1, which allows apublic body to en ter executive session to "discuss the reputation, character, physical condition ormental health, rather than professional competence, of an individual." G.L . c. 30A , 21(a)1.T he individual to be discussed in such executive session m ust be notified in writing by the publicbody at least 48 ho urs prior to the proposed executive session, and b e afforded the right to bepresent during deliberations that involve that individual and the right to speak on his own behalf.Id. Among the other ten enumerated purposes for executive session are Purpose 2, "No conductstrategy sessions in preparation for negotiations with nonun ion personnel or to conduct collectivebargaining sessions or contract negotiations with nonunion personn el"; Purpose 7, "N o complywith, or act under the authority of, any general or special law or federal grant-in-aidrequirements"; and Purpose 8, "N o consider or interview applicants for employment orappointment by a preliminary screening committee if the chair declares that an open meeting w illhave a detrimental effect in obtaining qualified applicants; provided, how ever, that this clause

shall not apply to any m eeting, including mee tings of a preliminary screening comm ittee, toconsider and interview applicants who have passed a prior preliminary screening." G.L . c 30A , 21(a)2, 7, 8.

A public body is also required to "create and maintain accurate minutes of all meetings,including executive sessions, setting forth the date, time and place, the members p resent orabsent, a summ ary of the discussions on each sub ject, a list of documents and other exhibits usedat the meeting, the decisions m ade and the actions taken at each meeting, including the record ofall votes." G.L. c. 30A, 22(a).

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DISCUSSION

O ur investigation revealed that the Board's search for a new Un iversity president wasflawed in several fundamental respects from an O pen M eeting Law perspective. T here weremu ltiple violations. For exam ple, mem bers were routinely perm itted to participate by telephone,a practice that was specifically prohibited at the time of the m eetings. M eetings were notseparately noticed, rather executive sessions w ere merely "continued" from one date to another.A nd when m eeting notices were posted, they were not sufficiently specific. M inutes from bothopen and executive sessions were short on detail. Finally, and most im portantly, the professionalcompetence an d qualifications of the three finalists was inappropriately discussed in executivesession, something which is specifically prohibited by the O pen M eeting Law . Indeed, there wasvirtually no public discussion, and certainly no debate, about the cand idate who w as ultimatelyselected, Dr. Caret. The pervasive problems, evident throughout the process, demonstrate apressing need for training on the O pen M eeting Law 's core principles.

I. he Board Held an Unlawful Executive Session on January 13, 2011 to InterviewFinalists for President of the University.

When finalists are interviewed for a significant public position, like president of theUniversity, there is an expectation of "open and public consideration" of their qualifications forthe job. See Gerstein v. Superintendent Search Screening Comm.,405 M ass. 465, 474 (1989 ),quoting A ttorney G eneral v. School Comm. of N orthampton,375 M ass. 127, 130 (1978); seealso G .L. c. 30A , 21(a)(8) (meetings "to consider and interview applicants who have passed aprior preliminary screening" are no t proper for executive session). T hat did not happen here.

Instead, the Board met in open session for just forty minutes, during which the Bo ardmem bers introduced the three finalists and read their biographies. Th e Board then en teredexecutive session for over three hours to interview and discuss the "repu tation and character" ofthe finalists. We understand that this was done on advice of counsel. Upon exiting executivesession, the Board imm ediately entertained and adopted a mo tion to appoint Dr. C aret the nextPresident of the U niversity.

O ur investigation revealed that the Board's executive session discussion on January 13,2011 w as not actually limited to the "reputation and character" of the finalists. R ather, theinterviews and discussion focused and appropriately so, given the decision that was beingmade on w hich candidate was the most qualified to be President. Therefore, the interviews anddiscussion should have taken place in open session.See G .L. c. 30A , 21(a) (1) (discussion of"professional competence" not proper for executive session); G .L. c. 30A , 21(a) (8) (finalistinterviews not proper for executive session).

A. The Board Discussed Topics Beyond the Narrow Scope of the Executive SessionPurpose the Board Cited.

A ccording to the minutes of the Board's January 13, 2011 executive session, the Boardvoted to enter executive session "to discuss the repu tation and character of individual candidatesand to condu ct a strategy session in preparation for negotiations with non-union p ersonnel, andto comply with general or special laws." A public body may enter executive session underPurpose 1 to "discuss the reputation, character, physical condition or men tal health,rather than

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professional compe tence,of an individual." G.L. c. 30A, 21(a)(1) (emphasis added). Purpose1 is available to protect an individual's privacy.See Puglisi v. School Com m. of Whitman,11M ass. App. C t. 142, 144 (M ass. App. C t. 1981) (Purpose 1 available to allow "a public body toengage in candid discussion abou t the character and reputation of an individual who is thesubject of potential action by that public body"). But it is not elastic. The Open Meeting Lawclearly contem plates that, generally, interviews and professional competence discussions willtake place in open session. G.L. c. 30A, 21(a)(1) and 21(a)(8). Indeed, the Boardacknowledged that m embers could discuss the reputation and character of individuals inexecutive session, but not their professional competence or qualifications.

T he problem for the Board is that there is virtually no evidence that it had any specificconcerns regarding the "reputation an d character" of the finalists.4 Rather, the evidencedemon strates that the Board attempted to force very real and pertinent questions aboutprofessional competence into the rubric of "reputation and character" so that the interviews anddebate could be conducted behind closed do ors.

T he executive session minutes state that "fflor each candidate, M s. G reenwood gave theBoard general information abou t each candidate's current employer, including num ber ofstudents, employees, degrees offered, budget and athletic programs, and sum marized theemploym ent history of each candidate, information w hich had been provided in op en session."T his, of course, summ arized the candidates'experience, and provided som e evidence of thecandidates' ability to run a school like the University. But it had nothing to do with reputationand character, as those terms are typically und erstood.5

M s. Greenw ood then "summ arized how each candidate described his personal view of hisgreatest achievement an d what h e considered his greatest challenge at his institution." A gain,what som eone has accom plished in his or her professional career speaks to that person'squalifications, not their reputation or character.

Following M s. Greenw ood's presentation, the "Board members then discussed personal

and confidential issues about the candidates." Much of this discussion touched on the finalists'political acumen an d connections. A gain, these are qualities that may be necessary to performthe job of U niversity president, but they have nothing to do with reputation or character.

T he Board then proceed ed to bring the finalists into the meeting, one at a time, to askeach the same question. That question included a caveat: "We're not asking you to describe yourprofessional accomplishments." But the question w as nonetheless designed to elicit statementsabout the finalists' personalities so that the B oard could ev aluate their fitness for the position of

4 T here was a discussion in executive session about why one finalist was leaving his current employmen t. While notentirely clear from the m inutes, this may have involved reputation and character, depending on the circumstances,and may have been appropriate for executive session.

5 "R eputation and character" are not technical terms. R ather, there is a common understanding of what they mean .Indeed, Trustee Thomas identified some elements of that common understanding in his interview. To him,reputation and character meant, amon g other things: "your reputation among co lleagues or supervisor," "how othersmight see you," and beh avior or conduct that "might have hum an resources implications," or that involves "lawenforcement." We endorse that common sense understanding of the terms.

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president. "[W]e w ould like to learn more about you as a person," the Board stated beforeasking the fm alists abou t their "character traits and personal characteristics" that wou ld be"relevant" to the Board's "important decision?" The responses were telling. According to theminutes, the fmalists spoke m ostly about their leadership styles and values. T hat is, theyresponded with reasons why they would make a good President. This was not a discussion ofcharacter as contemplated by Purpose 1, but an evaluation of the fmalistsaninterview that wasrequired to occur in open session. G.L. c. 30A, 21(a)(8).

Following the interviews, Chairman Karam asked Board members for comments,specifically suggesting that Board mem bers share their "impressions of the candidates' characterand reputations." A t this point the Board mem bers began sharing their opinions about thefmalists, and a consensus began to build around Dr. Caret, though Trustee Thomas advocated forDr. C lay. The m inutes reflect that Board members used w ords such as "personality,""reputation," and "character" when advocating for the certain fmalists. No vote is reflected inthe minutes. However, both Chair Karam and Trustee Thomas told this office that there was a"consensus" in the room behind Dr. Caret.

T his final discussion was also inapp ropriate for executive session. It was the u ltimatediscussion among the Board members that led to the appointment of Dr. Caret. This was perhapsthe most impo rtant period for the public to witness, as Board m embers shared their opinions ofthe finalists and built a consensus arou nd one can didate. The process that occurred here isexactly what the Op en M eeting Law w as enacted to prevent. T he decision to appoint Dr.Caretand how the Board reached that decisionoccurred entirely behind closed doors. TheBoard had prom oted "an open, transparent and inclusive" search in its press release on M ay 3,2010, announ cing the first meeting of the Search Com mittee. The B oard fell far short of thisgoal, and fell short of meeting the requirements of the Open M eeting Law .

B. The Board Cited Executive Session Purposes that Did Not Apply to the Discussionthat Actually Took Place.

In addition to "reputation and character," the Board also stated that it was enteringexecutive session "to conduct a strategy session in preparation for negotiations w ith non-unionpersonnel, and to comp ly with general or special laws." N either of these stated purposes wasappropriate for the discussion that occurred in executive session on January 13, 20 11.

Executive Session Purpose 2 allows a public body to "No conduct strategy sessions inpreparation for negotiations with nonu nion personnel or to con duct collective bargainingsessions or contract negotiations with nonunion personnel." G.L. c 30A, 21(a)2. The Boardmet in executive session to consider fmalists for the position of president of UM ass. There w ereno contract negotiations during this executive session, nor shou ld the Board have anticipated anyas it was meeting to consider finalists, not negotiate contracts. C hair K aram explained in an

interview w ith our office that some Bo ard mem bers had questions for the candidates about salaryranges and other requirements. Th ose questions were asked in the context of choosing apresident, not negotiating their contract. Tho se questions w ere not appropriate for executivesession, and should have been asked in open session.

T he final purpose the Board cited for entering executive session was "to com ply with

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general or special laws." Executive session Purpose 7 allows a public body "No comply with,or act under the au thority of, any gene ral or special law or federal grant-in-aid requiremen ts."G .L. c 30A , 21(a)7. If a public body enters executive session under Purpose 7, it must cite thespecific general or special law, o r federal grant-in-aid requirement, that requires confidentialityor requires the public body to meet behind closed doors. See Dist. Attorney for N. Dist. v. Sch.C omm. of Wayland,455 M ass. 561, 569 (2009 ) (explaining that the proper use of Purpose 7 toenter executive session requires the enum eration of the enabling law). H ere, the Board offeredno such citation to a general or special law. In interviews with this office, Chair K aram andT rustee T homas cou ld not offer a specific law or grant-in-aid requirement that required theBoard to enter executive session. Because the B oard did not provide any law or grant-in-aidrequirement to justify their executive session under Pu rpose 7, it was no t appropriate for theBoard to employ Purpose 7.

The Search Committee and the Board Improperly Allowed M embers toParticipate by Telephone.

T he improper use of executive session to interview presidential fmalists was not the onlyO pen M eeting Law violation. Currently, public body mem bers may not participate in meetingsby telephone. Indeed, the Attorney General's Open Meeting Law Guide, issued to all publicbody members, is explicit: "The A ttorney G eneral is authorized under the O pen M eeting L aw topermit remote participation by m embers of a pu blic body not present at the meeting location.This issue is under consideration by the AGO. While the issue is under consideration,remoteparticipation by mem bers of public bodies is not permitted under the O pen Me eting Law"(emphasis added). N onetheless, the Search C omm ittee's minutes state that memb ers participatedby telephone at meetings held on November 3, 2010 and January 13, 2011. The Board's minutesstate that four mem bers participated by telephone on Janua ry 13, 2011, the meeting at which theBoard selected the new president. While it is not clear from either the minutes o r our interviewsto what extent the m embers participated, each instance of remote participation constitutes aviolation of the Open M eeting L aw.6

III. he Search Committee Failed to Provide Notice and Failed to Follow theR equired Procedures for Entering Executive Session in M ultiple M eetings.

T he O pen M eeting Law requires that each meeting of a public body be separately andtimely noticed. G.L. c. 30A, 20(b) (notice required for notice for "every meeting at least 48hours prior") (emphasis added). This is not a mere technical requirement. Notice is essential topublic participation. See M cCrea v. Flaherty,71 M ass. App. C t. 637, 650 (2008) ("the noticerequirement contained in the statute is an essential attribute of the law; it is manifestly pointlessto conduct a m eeting to which the law requires public access if no mem ber of the public is awarethat the meeting is taking place"). Our investigation revealed, however, that the SearchC omm ittee had a practice of "continuing" its executive sessions from one date to another,without posting a separate notice for each meeting. For example, the Search C omm ittee entered

6 On June 29, 2011, the Attorney General issued a proposed regulation that, if finally adopted, will allow remoteparticipation in certain specified circumstances. H owever, that regulation is not yet fm al, and certainly was n ot ineffect at the time of the meetings at issue here. M oreover, the regulatory process demonstrates that the Board w asaware, at least by O ctober 2010, that remote participation was prohibited. In response to a request for publiccomment, the Board provided four pages of argument in favor of the Attorney General adopting a policy authorizingremote participation.

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executive session on September 17 , 2010 for the purpose of screening candidates, and then meton five separate occasions in O ctober and N ovemb er to interview candidates without posting themeetings. This practice violates the explicit notice requirement of the Open Meeting Law. G.L.c. 30A, 20(b); M cC rea, 71 M ass. A pp. Ct. at 650-651.

Furthermore, a public body may o nly enter executive session after it has "first convenedin an open session." Id. 21(b). Again, this requirement is not merely technical. The public isentitled to kno w that the relevant public body is en tering executive session, and w hy, each andevery time the body m eets. Id. at (b)(3) ("before the executive session, the chair shall state thepurpose for the executive session, stating all subjects that may be revealed w ithoutcomprom ising the purpose for which the executive session was called"). H ere, the SearchC omm ittee's practice of merely "continuing" the executive session from on e date to anotherdenied the public that knowledge.

A ccording to Chair K aram, the Search Co mm ittee engaged in this practice to protect theidentities of the preliminary candidates. We acknowledge that a p reliminary screeningcomm ittee may meet in executive session to interview candidates. We also acknow ledge thatindividuals often wish to ke ep their candidacy confidential at the preliminary stage of theprocess. See, e.g., G erstein, 405 M ass. at 474 ("there are substantial reasons for protecting theidentity of individuals who were candidates only early in the process"). But those legitimateconsiderations cannot trump the law's explicit notice requirements.7

IV. he Search Com mittee Failed to M aintain Sufficient M inutes of its M eetings.

T he Search C omm ittee was required to "create and maintain accurate minutes of allmeetings, including executive sessions, setting forth the date, time and place, the m emberspresent or absent, a summ ary of the discussions on each subject, a list of documents and otherexhibits used at the meeting, the decisions made and the actions taken at each meeting, includingthe record of all votes." G.L. c. 30A, 22(a). Our review of the Search Committee's minutes,however, dem onstrates that they were often inadequate.

T o begin with, the Search Com mittee failed to include in any of the minutes "a list ofdocuments and other exhibits used at the meeting." G.L. c. 30A, 22(a). The list is requiredbecause it permits the public to know exactly what the public body con sidered at its meeting, andwhat it relied on in taking action. Its consistent omission is significant.

But the list was not the only thing missing from the minutes. T here was also a consistentfailure to provide a "sufficient summ ary of the discussions on each subject." Id. at 22(a). Forexample, at the Search Com mittee's June 14, 2010 m eeting, the mem bers met for 2 V2 hours andapparently settled on a process an d timeline for the candidate search. H owever, the minutescontain only eight sentences. A nd those sentences provide no detail about either the timeline or

the process the comm ittee planned to use to select the next University president. The m inutes ofthe September 17, 2010 are similarly deficient. A s are the minutes for the October andNovember 2010 executive sessions during which the Search Committee interviewed candidates.

7 We are sure that there a re practical ways to address the Board's confidentiality concerns within the letter and spiritof the Open Meeting Law. We are happy to work with the Board in the course of the chancellor appointmentprocess to explore potential options.

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T hose minutes essentially contain only a statement abou t the need for confidentiality and the factthat a certain num ber of interviews were condu cted. The m inutes provide no summ ary of theinterviews, no summ ary of the Search C omm ittee's discussion to narrow the list of candidates tofive finalists, and no record o f any votes.8 This is simply not enough. Meeting minutes, whetherfor open or executive sessions, must give the reader an adequate und erstanding of what actuallyhappened at the meeting. They do not have to be transcripts. But they do have to reflect thediscussion that occurred, the action taken by the body, and the positions taken b y the individualmembers. G.L. c. 30A, 22(a). Confidentiality concerns, while legitimate, do not justify acomplete lack of detail in meeting m inutes.9

V. he Search C omm ittee and the Board Failed to Provide a Sufficient L isting ofT opics in its M eeting No tices During the Search Process.

A s stated above, the Search C omm ittee did not properly notice several of its meetings.But where the Search C omm ittee and the Board did provide notice, the notices were oftendeficient. Specifically, they did n ot include "a listing of topics that the chair reasonablyanticipates will be discussed at the meeting." G .L. c. 30A , 20(b).m Indeed, the SearchC omm ittee's meeting notice for its September 17, 2010 m eeting failed to provide a listing of anytopics. It merely stated the date, time, and location of the m eeting.

Similarly, the Board's January 13, 2011 meeting notice listed only two topics: "Call toOrder" and "Report of the President's Search Committee." In his interview with our office,C hair K aram explained that he did not know what the result of the January 13, 2011 SearchC omm ittee wou ld be, and therefore did not feel as though he could anticipate what would occurat the January 13, 2010 Board m eeting.

T he O pen M eeting L aw does not require the chair of a public body to guess what willoccur during a meeting. Bu t the chair does need to list those topics that he reasonably anticipateswill be discussed at the meeting. G.L. c. 30A, 20(b). Here, Chair Karam should havereasonably anticipated that the Bo ard wou ld be interviewing fmalists, and possibly appointing apresident. In fact, The Boston Globequoted C hair K aram, in an article that appeared themorning of the meeting, as saying, "We're obviously optimistic that the plans will go ahead asoriginally planned...I am hoping that as a result of 10 months' worth of a very detailed, open,and com prehensive process that the board w ill fmd o ne of the three people we are forw arding tothe board as capable of leading UM ass, and choose the one w ho best fits the institution's needsgoing forward." Tracy Jan, Front-Runners Emerge for UMass President,THE BOSTON GLOBE,January 13, 2011.

8 A gain, the concern is not with accuracy of the minutes, but with the absence of a vote on a final decision made inexecutive session. See n.2, supra.

9 Public bodies have the o ption of redacting executive session minu tes pursuant to the appropriate sections of thePublic Records Law, G.L. c. 66. 10, and G.L. c. 4, 7, cl. 26, to address confidentiality concerns.

10 We note that the Open M eeting L aw was revised by the Ethics Reform A ct of 2009. Those revisions took effecton July 1, 2010. T he requirement that a m eeting notice include "a listing of topics that the chair reasonablyanticipates will be discussed at the meeting" was not a provision of G . L. c. 30A , 11A 1/2, which was the priorversion of the O pen M eeting Law . Therefore, we are only reviewing the notices for meetings after July 1, 2010 forcompliance with the requirements of G.L. c. 30A, 20(b).

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T his was a significant action by the B oard, and clearly anticipated by the chair. Even ifthe recommen dation of the Search Com mittee's report was unclear at the time the meeting noticewas po sted, it would have been appropriate for the notice to state: "R eport of the President'sSearch C omm ittee: Th ere may be a recomm endation to the Board of finalists for the position ofPresident. If the Search Com mittee recommend s finalists, the Board m ay interview thosefmalists. The Board may vote to appoint a President from among those finalists." This wouldhave provided the pu blic with appropriate notice that the Board was likely to appoint a n ewpresident at its January 13, 2011 m eeting.

VI. he Search Committee Created a Subcommittee that Failed toFollow theRequirements of the Open Meeting Law.

Finally, the minutes of the Search C omm ittee's M ay 3, 2010 meeting state that T rusteeM aria Furman agreed to lead a group to review proposals from search firms, in an effort to retaina firm to assist the Search C omm ittee in the search process. Search C omm ittee mem bers PhilipJohnston, R obert Sheridan, Winston L angley and M arcellette Williams also volunteered to"work with Maria on reviewing the proposals." According to our interview with Trustee HenryThomas, this group of Search Committee members interviewed the search firms and ultimatelychose a firm.

Wh ether or not this group was loosely organized, or conducted its work inform ally withthe assistance of staff, it was nonetheless a subcomm ittee subject to the O pen M eeting Law . TheOpen Meeting Law applies to "public bodies." A "public body" is any "multiple-member board,commission, committeeor subcommittee within the executive or legislative branch or w ithin anycounty, district, city, region or tow n, how ever created, elected, appointed or otherwiseconstituted, established to serve a public purpose." G.L. c. 30A, 18 (emphasis added)." A"subcom mittee" includes "any multiple-member body created to advise or makerecommendations to a public body." Id. While the minutes do not reflect a formal vote by theSearch C omm ittee to establish this subcomm ittee, the membe rs acted with the authority granted

to them by consensus of the Search C ommittee at the M ay 3, 2010 meeting. The subcommitteedid not post any notices for its meeting. The su bcomm ittee did not hold open meetings or followthe requirements of the Open M eeting Law in any way. T he subcomm ittee ultimately chose thesearch firm that the Search C omm ittee engaged, w hich presumably constituted a significantUniversity expense.

CONCLUSION

O ur investigation uncovered num erous violations of the O pen M eeting L aw. We are veryconcerned about the diligence with which the Board adheres to the O pen M eeting Law . Weappreciate that the Board mem bers are volunteers who donate many h ours to the University ofM assachusetts and are dedicated to the excellence of this public institution. But they must abide

" A t the time the subcommittee was formed, the prior O pen M eeting L aw, G .L. c. 30A , 11A 1/2 applied. Instead of"public bodies", the law applied to "governmental bodies." However, the analysis remains the same. Under boththe prior and current version of the Open M eeting Law, a subcomm ittee is subject to the O pen M eeting Law("G overnmen tal body" is "a state board, committee, special committee,subcommittee or commission, howevercreated or constituted within the executive or legislative branch of the common wealth or the governing board orbody of any authority established by the general court to serve a public purpose in the common wealth or any partthereof."). G.L. c. 30A, 11A 1/2 (repealed and emphasis added).

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by the O pen M eeting Law, and they consistently failed to do so.

As discussed above, the Board has announced that it will begin the process of appointinga new University of Massachusetts Amherst Chancellor in September. Given the pervasive OpenM eeting Law violations that occurred during the presidential appointment process, we believethat this new process provides a unique and timely opportunity to educate the Board on the coreprinciples of the Open Meeting Law. Therefore, we order the Board1 2to take the followingremedial actions:

1. Immediate and future compliance with the Open M eeting Law, G .L. c. 30A, 18-25. Similar future violations of the Open M eeting Law will be considered intentionalviolations.

2. Certify to the Division that each member of the Board has received a copy of thisdetermination.

3. Undergo training on the Open Meeting Law prior to beginning the process ofappointing a new University of Massachusetts Amherst Chancellor, and certify to theDivision office that every member of the Board has attended that training. The trainings

are to be conducted by an attorney or organization familiar with the requirements of theLaw and approved by the Division. If the Board appoints a new search committee for theChancellor position, the members of that committee must also undergo Open M eetingLaw training, approved by the Division, before they begin deliberations.

4. Submit a copy to the Division of any and all meeting notices required by the OpenM eeting Law and posted by the full Board or its subcommittees during the appointmentprocess of the new University of Massachusetts Amherst Chancellor. These may besubmitted to the Division via email toopenmeetingAstate.ma.us .

5. Submit a copy to the Division of all meeting minutes, for both open and

executive sessions, created during the chancellor appointment process. Thesemay besubmitted to the Division via email [email protected] .

6. Review all unreleased executive session minutes of the Board and its committeescreated during the presidential search process to determine whether the purpose forhaving entered executive session in each circumstance still exists, and release executivesession minutes where doing so would no longer frustrate the purpose for having enteredinto the executive session. This review should occur within 60 days of receipt of thisdetermination.

7. Create, approve, and release full and accurate meeting minutes for the Search

C ommittee's September 17, October 7, October 8, O ctober 21, October 22, andNovember 3, 2010 meetings.

We appreciate the cooperation of the Board during this investigation. We now consider

12 We do not order any remedial actions for the Search Committee because it has disbanded and no longer servesany official purpose.

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this matter closed. Please contact me if you have any questions regarding this letter.

Jonathan SclarsicAssistant Attorney GeneralDivision of Open Government

Ph: 617-963-2045

umass open meeting law investigation, letter from ag’s office

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